Citation Nr: 1042927
Decision Date: 11/15/10 Archive Date: 11/24/10
DOCKET NO. 02-16 273 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas
THE ISSUE
Entitlement to service connection for residuals of a head injury.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Amy R. Grasman, Associate Counsel
INTRODUCTION
The Veteran served on active duty from April 1975 to March 1982.
This case was originally on appeal from a January 2002 rating
decision issued by the Department of Veterans Affairs (VA)
Regional Office (RO) in Houston, Texas that denied the reopening
of the Veteran's claim for service connection for residuals of a
head injury. The RO continued the denial to reopen the Veteran's
claim in an April 2002 rating decision. The Board found that new
and material evidence was submitted and reopened the Veteran's
claim in May 2005. The Board remanded the case in May 2005 and
in May 2006 for additional development. The Board notes that the
Veteran's initial claim also included the issue of whether new
and material evidence was submitted to reopen the Veteran's claim
for entitlement to service connection for a back disability.
This issue was denied by the Board in May 2005 and will not be
addressed in this decision.
In March 2008, the Board remanded the case for a Travel Board
hearing. In August 2010, the Veteran testified in a Travel Board
hearing in front of the undersigned Veterans Law Judge. The
transcript of the hearing is associated with the claims file and
has been reviewed.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the appellant if
further action is required.
REMAND
VA has a duty to assist the veteran in the development of the
claim. This duty includes assisting the veteran in the
procurement of service treatment records, pertinent medical
records and providing an examination when necessary. 38 U.S.C.A.
§ 5103A (West 2002); 38 C.F.R. § 3.159 (2010).
Here, the Veteran contends that he injured his head in service
when he was personally assaulted. He alleges that he was treated
in an Army Hospital and released. While there is no
documentation of an injury to the Veteran's head in the service
treatment records, the Veteran is competent to describe such
injury. See 38 C.F.R. § 3.159(a)(2) (2010); Washington v.
Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet.
App. 465, 469-70 (1994). The Board acknowledges that lay
evidence concerning continuity of symptoms after service, if
credible, is ultimately competent, regardless of the lack of
contemporaneous medical evidence. Buchanan v. Nicholson, 451
F.3d 1331 (Fed. Cir. 2006).
Additionally, the RO has attempted to obtain additional in-
service treatment records, but were unsuccessful. Further, post-
service records reflect treatment for a reported head trauma.
Therefore, a remand is necessary in order to determine whether
any residuals of a head trauma are related to his period of
active service. See McLendon v. Nicholson, 20 Vet. App. 79
(2006). The Board notes that the threshold for establishing
whether a claimed disability or symptoms may be associated with
service is low; there need only be evidence that "indicates" that
there "may" be a nexus between the current disability and
military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006).
Accordingly, the case is REMANDED for the following action:
1. Ensure that all reasonable attempts were
made to obtain any outstanding records not
associated with the claim file. Issue a
formal determination that such records do not
exist or that further efforts to obtain such
records would be futile, which should be
documented in the claims file. The Veteran
must be notified of the attempts made and why
further attempts would be futile, and allowed
the opportunity to provide such records, as
provided in 38 U.S.C.A. § 5103A(b)(2) and 38
C.F.R. § 3.159(e).
2. Then, the Veteran should be scheduled for
a VA examination with the appropriate medical
specialist to determine if there are
residuals of a head trauma and the etiology
of any such residuals. The claims file must
be made available to and reviewed by the
examiner in conjunction with the examination,
and the examination reports should reflect
that such a review was made. All pertinent
symptomatology and findings should be
reported in detail. Any indicated diagnostic
tests and studies should be accomplished.
The examiner should state whether the
veteran's disability is more likely than not
(i.e., probability greater than 50 percent),
at least as likely as not (i.e., probability
of 50 percent), or less likely than not
(i.e., probability less than 50 percent),
causally or etiologically related to or
aggravated by active service. Any opinion
expressed should be accompanied by supporting
rationale.
3. The RO should then readjudicate the issue
on appeal. If the determination remains
unfavorable to the veteran, the RO should
issue a supplemental statement of the case
that contains notice of all relevant actions
taken, including a summary of the evidence
and applicable law and regulations considered
pertinent to the issue. An appropriate
period of time should be allowed for response
by the Veteran and his representative.
Thereafter, the case should be returned to
the Board for further appellate
consideration, if in order.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2010).